A “Will” Changed to “Devise”?

Grandpa Li and Grandma Li were married and had two children, Li Yi and Li Er. Grandpa Li and his wife have been taken care of by Li Yi’s family. In 2010, Grandpa Li passed away, leaving a will written by himself. The main content of the will reads: “I live in the house. Due to a variety of diseases, I have decided to hand over the property and everything to my grandson Xiao Li.”

After Grandpa Li passed away, Grandma Li expressed her hope to give the whole house to Xiao Li. However, Li Er thought that the WILL was invalid and requested that the house be divided according to legal inheritance rules, such that Xiao Li had great difficulties in obtaining the house.

Li Er Claimed that there were two main reasons that the HOUSE should be divided according to the legal inheritance:

Although the full text of the will is written by Grandpa Li, the date the will was a year before Grandpa Li died, and part of the content of the writing was not clear, making it debatable whether Grandpa Li was conscious when writing.

Even if the will is true, because Li Yi, Xiao Li’s father, is still alive, the will Grandpa Li gave to Xiao Li is in essence a devise, and Xiao Li has no direct evidence to prove that he expressed his intention to accept the devise within 60 days after Grandpa Li’s death (or from the date of knowing the existence of the will), it should be regarded as not accepting the devise. Thus , Grandpa Li’s part of the property should be divided according to legal inheritance.

After investigating the facts, DaWo made the following defense against the above claims made by Li Er:

For the authenticity of the will: the full text of the will was written by grandpa Li, signed and dated, and although limited by the degree of education, and the statements of the will slightly unclear, nonetheless the meaning of the will was clear. Moreover, it was supplemented by the testimony of neighbors to prove that Grandpa Li and his wife were primarily cared for by Li Yi’s family, which lended credibility to the will being Grandpa Li ‘s real intention.

Regarding devise: although the Civil Code was in force at the time of the trial, according to the provisions of Article 1, Paragraph 2 of Several Provisions of the Supreme People’s Court on the Retroactivity in the Application of the Civil Code of the People’s Republic of China, the provisions of the law and judicial interpretation in force at the time of the will should be applied.

At trial, DaWo argued that the provisions of the Inheritance Law and the Opinions of the Supreme People’s Court on Several Issues concerning the Implementation of the Inheritance Law, poited out that Xiao Li was still a minor at the time of accepting the will, and the expression of his intention to accept the will should be made by his legal guardians, while his legal guardians have at the same time no right to derogate the interest of the minor. Accordingly, according to the laws mentioned above, Xiao Li accepted Grandpa Li’s devise.

Result of the case

After much debate about the evidence, and noting the fact that Grandma Li stated in court that she was willing to give her share in the house to Xiao Li, the parties finally reached a unanimous agreement: Xiao Li obtained full ownership of the house, while Xiao Li paid 100,000 yuan to Li Er.

Law about the case

In practice, devises between relatives often occurs when grandparents leave a substantial inheritance to grandchildren in their wills, although they might not be legal heirs as stipulated in Article 1127 of the Civil Code.

It is important to note that they are required to indicate whether or not they accept the devise within sixty days after they become aware of the devise in accordance with the Article 1124, paragraph 2 of the Civil Code. Otherwise, the acceptance of the bequest shall be deemed to be waived.

DaWo has extensive experience with complicated inheritance matters involving both Chinese and international parties. If you have any questions, please don’t hesitate to reach out.

Related Articles